consumer survey can’t make a scientifically wrong use of a term right

Gunaratna v. Dennis Gross Cosmetology LLC, No. CV
20-2311-MWF (GJSx), 2023 WL 2628620 (C.D. Cal. Mar. 15, 2023)

Plaintiff challenged defendant’s “C + Collagen” claim as
falsely indicating that its product actually contained collagen.  

Defendant wants to make this action
about whether “collagen” means “collagen” and what consumers understand
“collagen” to mean. The problem for Defendant is that “collagen,” standing on
its own, is not some undefined, amorphous term — there is a widely-accepted
scientific definition describing collagen. Even Defendant’s own expert, when
pressed, defines collagen as a protein only found in animals.

This affected the expert testimony that would be admitted.

Defendant is free to [argue] that
the label does not convey that the products contain collagen and that the
presence of collagen is not material to consumers’ purchasing decision. But
Defendant is not free to offer its own definition of “collagen” unsupported by
any reliable science in the record.

Thus, portions of expert reports that “blindly adopt the
notion that ‘plant based collagen amino acids’ exist” would be excluded.

The role of a district court in screening experts is that of
“a gatekeeper, not a fact finder.” “An expert can appropriately rely on the
opinions of others ‘if other evidence supports his opinion and the record
demonstrates that the expert conducted an independent evaluation of that
evidence.’ ” And an expert may adopt his party’s version of the disputed facts,
“unless those factual assumptions are ‘indisputably wrong.’ ”

This is a putative class action against a skincare company
that allegedly falsely advertises products labeled “Dr. Dennis Gross C +
Collagen,” because they “(admittedly) do not actually contain any collagen, as
the word is typically and scientifically understood. Rather, the products
contain vegetable-derived amino acid molecules, which Defendant claims mimic
the structure of ‘hydrolyzed’ collagen. But collagen is a protein found
exclusively in the cartilage, bone, and tissues of animals, fish, and humans,
and is not found in plants.” There’s a market for collagen-containing products
because it’s been linked to maintaining youthful skin, hair, and nails.

Defendant argued that its labels weren’t false because consumers
understand “C + Collagen” to mean that the products contain Vitamin “C” (which
it does), and Vitamin C boosts (“+”) the body’s natural production of
“Collagen.” Plaintiffs pointed out that “+” is commonly used in the industry to
indicate “and” not “boosts.”

Defendant also argued that the products actually contain
plant-sourced “collagen amino acids,” that is, amino acids derived from corn,
soy, and wheat, not from collagen, but that are 
chemically and functionally identical to amino acids from hydrolyzed
animal collagen. Plaintiffs argued that, if so, defendant should have invested
in marketing to explain to consumers that plant-based amino acids have similar
anti-aging attributes as does collagen. As long as consumers, whether logically
or not, attach value to the label “collagen,” the labels distort the available
information in the market and gives a price premium to the product.

The court accepted plaintiffs’ expert Dr. Fetzer’s opinion
that the amino acids weren’t “collagen amino acids.” This was not about
equivalence but about origin. He opined that, even if there were some
similarities between the vegetable amino acids in the products and real
collagen, calling the amino acid solution within the products as “collagen” or
“collagen amino acids” is “analogous to stating that a collection of the 26
letters of the alphabet in approximate proportions to those of Shakespeare’s
Hamlet mean that those letters must have really been from a text of Hamlet.”

To rebut this chemist’s opinion, defendant offered the
opinions of a dermatologist, but they weren’t supported by the record. Her
opinion as to the products’ overall efficacy was only relevant to the issue of
damages, not falsity or deception. Her interpretation of what “Collagen + C”
conveys was not relevant to the reasonable consumer test (and also tended to
support plaintiffs anyway). However, to the extent that defendant could show
that reasonable consumers interpret the term as meaning that the product boosts
collagen rather than containing collagen, her opinion would be relevant to show
that was true. But her opinion that the supposed vegetable collagen was
equivalent to actual hydrolyzed collagen was excluded; she was not a chemist,
has not researched equivalency of hydrolyzed solutions or plant protein
hydrolysis, and didn’t have expertise in chemical industry standards for

However, the court didn’t exclude her opinions as biased just
because she was an endorser and user of the products.

Both sides offered surveys; ordinarily, the court would
consider them both admissible because the objections went to the weight of the
evidence. But the defendant’s survey and its objections to plaintiffs’ survey
were based on the excluded opinions regarding the chemical composition of the
products. Defendant’s view of the facts — that it is accurate to call its solution
“plant-based collagen amino acids” — was explicitly rejected by the only expert
who is a qualified chemist and was otherwise unsupported by any admissible,
scientifically-sound evidence. Saying that a product has “plant-based collagen
amino acids” is not the same as saying it has “the equivalent” or a “synthetic”
version of collagen. It was like arguing that watches made in Japan can be sold
with a label “Made in the USA,” just because the watches are just as effective
as those made in the USA. “By saying amino acids are ‘collagen’ amino acids,
Defendant is representing that the amino acids are derived from collagen.
Otherwise, what makes the amino acids ‘collagen amino acids’?” Not any amino
acid in collagen is a “collagen amino acid,” at least by the admissible
testimony and common sense. “One cannot claim something has water in it just
because it has some amount of hydrogen.”

But the Ninth Circuit has instructed courts to be very
generous with consumer surveys. Still, there is Daubert, and “the low
bar imposed on consumer surveys has been described in contrast to novel scientific
theories,” but here the survey was the vehicle for introducing such a theory.
Thus, defendant’s survey expert’s assumption that “plant based collagen amino
acids” exist and, moreover, that this full phrase appeared on the products, “deeply
infects the results of her survey and would confuse the issues for any jury.”

Defendant has not shown by
admissible evidence that what “collagen” means is up for any real scientific
debate. While consumers and laypersons may not have a scientific understanding
of where collagen comes from – the question “what is collagen?” has but one
accurate answer, and more importantly, is not the issue in dispute at least on
the issue of falsity/deception.

Defendant challenged plaintiffs’ survey on various grounds.
The survey used respondents who had purchased personal care and beauty products
in the last 6 months and asked them whether they understood the product labels
to mean that the products contained collagen. He then asked whether, they would
be more or less satisfied with their purchase, or more or less likely to buy it
again, after learning that the products contained no collagen and only
contained amino acids. He also asked the respondents whether, after learning
that the product contained no collagen and only contained amino acids, they
would be more or less likely to purchase the product again. The expert
concluded that over 95% of respondents understood the front label to mean that
the products contain collagen, and 51.7% of respondents indicated that they
would be “much” or at least “somewhat less satisfied” if they learned
otherwise. This adequately tested deception and materiality, even if it didn’t
test reliance.

Defendant argued that the respondents weren’t representative
because its consumers are high-end, sophisticated product purchasers and
therefore the population was non-representative. But it wasn’t clear why that
would be a problem, given that more sophisticated shoppers “are likely more
aware of, and perhaps specifically desire, the benefits of collagen products,”
so this just went to weight rather than admissibility.

Meanwhile, the central question in defendant’s survey was:

Q13. Based on your understanding of the product, which of
the following, if any, describes what C + Collagen means? 

(Select all that apply)

1. Product contains Vitamin C which increases collagen

2. Product contains animal collagen

3. Product contains plant-based collagen amino acids

4. Something else (Please specify): ___ 

5. None of these [EXCLUSIVE]

6. Don’t know / unsure [EXCLUSIVE]

Defendant’s expert concluded that “the majority of
purchasers [surveyed] understand that C + Collagen means the product contains
Vitamin C” (49.7% selected “Product contains Vitamin C which increases
collagen). And the “next most common interpretation of C + Collagen was that
the product contains “plant-based collagen amino acids” (37.2%), while only
26.4% indicated that C + Collagen meant that “the product contains animal

The survey also asked materiality questions assuming that
plant-based collagen amino acids were real, and purportedly found that 58.5% of
consumers wouldn’t care—and of those who did care, only 3% would be less likely
to buy plant-based products.

But nothing in defendant’s survey tested plaintiffs’ theory
of the case: that the label conveys that the products contain both Vitamin C
and collagen. “So, the fact that most individuals picked the answer choice
indicating that they interpreted the label to mean Vitamin C boosts collagen is
unsurprising given it is the only answer that contains both Vitamin C and
collagen.  The fatal flaw was that the survey used the junk science that the court
was supposed to keep out of the courtroom: “the questions introduce a substance
that does not exist in the real world or even appear as a phrase on the
Products’ packaging.” 

The survey “tested whether consumers understand where
collagen comes from,” but that was different from the argument that “consumers
value the word ‘collagen’ itself – whether consumers understand the science or
not,” which allowed the defendant to charge inflated prices. Thus, the expert’s
opinions and conclusions related to these questions were excluded as to falsity
and materiality, as were her critiques of other experts based on their failure
to test the concept of “plant based collagen amino acids,” The remaining
aspects of the report (such as the reliance questions/answers) were admissible.

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